Chapter 10

Privilege and confidentiality

Introduction and background

10.1A privilege recognises that the public interest in protecting certain types of confidences can be more important than ensuring a court has all relevant evidence at its disposal in order to decide the matters before it. The law relating to privilege reflects the delicate balancing act between these competing interests. The nature of the privilege and the relationship or interests it protects affects the manner in which the balance is struck.

10.2This balancing requires consideration as to the form of privilege that is appropriate. A privilege can be absolute (so there is a clear right not to testify about the protected information) or qualified (where there is a general understanding that the protected information is protected but a court has a discretion to require it be disclosed in a particular case). Alternatively, instead of privilege attaching to particular information or relationships, a court can be provided with a discretionary power to allow information not to be disclosed in the circumstances of a particular case.

10.3The privilege and confidentiality provisions are contained in subpart 7 of Part 2 of the Act. This chapter considers issues raised regarding legal advice privilege, the privilege for settlement negotiations and mediation, and medical privilege and confidential information. The chapter concludes with consideration of other general privilege matters: interpretation, waiver and joint and successive interests.

Development of the Evidence Code

10.4 The Law Commission issued a preliminary paper on privilege in 1994 that contained a detailed discussion on the law of privilege and its preliminary views on how the competing interests should be balanced.608 One of the most controversial recommendations was that legal advice privilege, litigation privilege and settlement privilege be “qualified”. This would mean the privilege could be overridden if “the court considers that, in the interests of justice, the need for the communication to be disclosed in the proceeding outweighs the need for the privilege.”609 The Law Commission also proposed that the legal advice privilege be extended beyond lawyers to anyone conducting a case or giving legal advice.610

10.5 However, in 1999 when the Evidence Code was issued, submitters had persuaded the Law Commission to change its view.611 In the intervening five years, it became convinced that the legal advice privilege, litigation privilege and mediation privilege should be absolute privileges. It was also convinced that legal advice privilege should remain restricted to lawyers.